ently; one payable upon some contingency, such as the delivery of property, as well as for property already delivered. When the contingency happens, the debt becomes fixed; it exists." See also, the title MUNICIPAL CORPORATIONS. Neglect. A claim arising out of the official neglect of the county clerk, has been held not to be a debt within the meaning of the statute authorizing an attachment for debt. Dunlop v. Keith, 1 Leigh 430, 19 Am. Dec. 755. Debt Contracted. The homestead exemption does not protect against a demand for damages for breach of promise to marry, which is not a debt contracted, but a quasi tort. Burton v. Mill, 78 Va. 468. See also, the title HOMESTEAD EXEMPTIONS. Fine. In Whiteacre v. Rector, 29 Gratt. 715, it is said: "A fine imposed by statute for the violation of a law can not, in any just sense, be designated as a debt contracted. The ordinary meaning of the word debt is a sum of money due to another by contract; and a 'debt contracted' necessarily means that a debtor has come under a voluntary obligation to a creditor. The relation of debtor and creditor implies, as of course, that the one has given credit to the other in a contract. It would be a solecism and absurd to say that a fine imposed as a punishment for a penal offense was a debt contracted." In Clarke v. Tyler, 30 Gratt. 139, it is said: "If the provision of the act had been that these coupons should be receivable for all taxes and debts due the state,' there might be some room for doubt whether fines were embraced; for although fines are recoverable by action of debt, and in a certain sense a fine is a debt due the state, yet it might be said with much force, if not conclusively, that the word debt refers to matters of contract, and that, therefore, a fine is not embraced in the meaning of the statute in the word debt. But the words dues and demands are added." Legacy. In Yates v. Salle, Wythe 170, it is said: "A legacy is not a debt of the testator. It is, with respect to him, a beneficence, to exaction of which from.him the law did not entitle the legatary. The testator might have revoked it which he could not have done, if a legacy were synonymous with a debt. Besides, the right of the legatary, before the testator's death, is not perfect. The testator then was not a debtor whilst he lived; and with his existence his power to become a debitor ceased. A legacy is not the debt of an executor. A debt originates ex contractu, which doth not exist between him and the legatary, the executor, by wasting the testator's goods, may be responsible indeed for the value of them, to an unsatisfied legatary; but here the legacy is not, but reparation for maladministration in his office, is the thing demanded from the executor, the right to demand it originating ex malificio, although the legacy is the measure of that reparation." A testator by a codicil to his will declares: "I herein mention a debt, of $600 I owe to the Presbyterian church of Charlottesville, Va., and I wish it duly paid, without interest, out of my estate, to that church after my sister's death." The codicil is dated November 7, 1884. The sister died in 1896, and a suit was brought by one member of the church suing on behalf of himself and four hundred other members in 1898. There was no proof of the existence of such a debt except the statement of the codicil, and no evidence was offered against it. Held, though a church can not take as legatee under a will, this is not a legacy, but a debt, and the codicil alone is sufficient proof of its existence. Perkins v. Seigfried, 97 Va. 444, 34 S. E. 64. Taxes. See generally, the title TAXATION. In Hinchman v. Morris, 29 W. Va. 673, 2 S. E. 870, it is said: "Taxes, whether state, county, or municipal, are charges imposed directly or indirectly by the legislative power of a state upon persons or property, to raise money for public purposes. See Bleecker v. Ballou, 3 Wend. 263. In its essential characteristic it is not a debt. It is not founded on contract, as is a debt, but operates in invitum. The difference between any tax proper and a debt is very marked. They differ entirely in their mode of collection and enforcement. See City of Camden v. Allen, 26 N. J. Law 398; Peirce v. City of Boston, 3 Metc. 520. In the absence of statutory provision, taxes do not bear interest. Shaw v. Peckett, 26 Vt. 482. Their assessment upon land does not create a debt against the owner, and therefore it can not, when laid by a municipal corporation, be garnished, attached, or seized in execution at the suit of a creditor of the municipal corporation. Egerton v. Third Municipality, 1 La. Ann. 435. Nor is it a judgment or contract which may be set off against the claim of a creditor of a city. Pierce v. City of Boston, 3 Metc. 520. Unless the statute, expressly or by fair implication, authorizes a suit to be brought to collect a tax, it can not be collected in that manner. Board of Education v. Old Dominion I. M. & M. Co., 18 W. Va. 441. A statute abolishing imprisonment for debt does not prevent imprisonment for the nonpayment of taxes. Appleton v. Hopkins, 5 Gray 530. It is true there are some decisions where it has been held that the imposition of a tax created a legal obligation to pay on which the law raised an. assumpsit which might be sued on, notwithstanding the law gave another specific remedy. See Dugan v. Baltimore, 1 Gill & J. 499; Baltimore v. Howard, G Har. & J. 383; State v. Steamship Co., 13 La. Ann. 497; Dunlap v. County, 15 Ill. 9; Ryan v. County, 14 Ill. 83. But, as was well said in Board of Education v. Old Dominion I. M. & M. Co., 18 W. Va. 445: These decisions are against both reason and the decided weight of authority.' It is not true that the imposition of a tax creates a legal obligation to pay. The above cases are overthrown, expressly or necessarily, in the following cases among others: City of Camden v. Allen, 26 N. J. Law 399; Shaw v. Peckett, 26 Vt. 482; McInerny v. Reed, 23 Iowa, 410; Crapo v. Stetson, 8 Metc. 394; Packard v. Tisdale, 50 Me. 376;, City of Carondelet v. Picot, 38 Mo. 125; Alexander v. Helber, 35 Mo. 334; Cooper 7. Savannah, 4 Ga. 68; Heine v. Levee Comm'rs, 19 Wall. 659." Taxes are not debts. State v. Baltimore, etc., R. Co., 41 W. Va. 81, 23 S. E. 677. Debts of Record.-In Ratcliffe v. Anderson, 31 Gratt. 105, it is said: "Blackstone in his commentaries divides contracts of debt into three classes-debts of record, debts by special, and debts by simple contract. 'A debt of record (he says) is a sum of money which appears to be due by the evidence of a court of record. Thus, where any specific sum is adjudged to be due from the defendant to the plaintiff in an action or suit at law, this is a contract of the highest nature, being established by the sentence of a court of judicature. 1 Chitty's Black., book 2 (marg.), page 455. See also, opinion of Spencer, J., 7 Johns. R. 489, 490." Schools.-In Davis v. Board of Education, 38 W. Va. 382, 18 S. E. 588, it is said: "Chapter 45, § 45, Code, provides that no board of education shall incur any debt to be paid out of the school money of any subsequent year, and shall not contract for or expend in any year more than the aggregate amount of the quota of the general school fund, and the amount collected from the district levies of that year, together with the balance in the sheriff's hands from the preceding year, and such arrearages of taxes as may be due the district. * * The naming a sum in a contract for building a schoolhouse, payable in future, * may be, in a sense, called a debt; but if not payable out of the school money of subsequent years, in terms, or it will not exceed the money of the then fiscal year, it is not a debt forbidden by the section." See generally, the title SCHOOLS. Debtor in the Sense of Garnishee.-See Pennsylvania R. Co. v. Rogers, 52 W. Va. 460, 44 S. E. 300. Debtor and Creditor. See the titles ACCORD AND SATISFACTION, vol. 1, p. 81; ASSIGNMENTS FOR THE BENEFIT OF CREDITORS, vol. 1, p. 799; BANKRUPTCY AND INSOLVENCY, vol. 2, p. 232; COMPROMISE, vol. 3, p. 37; CREDITORS' SUITS, vol. 3, p. 780; FRAUDULENT AND VOLUNTARY CONVEYANCES; PAYMENT. DEBT, THE ACTION OF. I. Definition and Distinctions, 271. A. Definition, 271. B. Contrasted with Case, 271. C. Contrasted with Assumpsit. 271. II. Right to Maintain the Action, 272. A. In General, 272. 1. Statutory Provisions, 272. 2. Must Be Obligation for Payment of Money or Equivalent, 272. 3. Must Be Sum Certain, 275. B. Simple Contracts, 277. 1. Bills, Notes and Checks, 277. 2. Money Counts in Assumpsit, 279. 3. Arrears of Rent, 279. 4. Insurance Policy, 279. C. Sealed Instruments, 280. D. Escape, 282. E. Judgments, 283. F. Fines and Penalties, 284. 1. Fines, 284. 2. Penalties, 285. G. Obligation to Pay Money in Installments, 286. H. Claim for Services Rendered, 286. I. Writing Acknowledging Debt, 286. III. The Pleadings, 286. A. The Declaration, 286. 1. In General, 286. 2. In Debt on Negotiable Paper, 287. 3. In Debt on Specialties, 288. a. Bonds, 288. b. Deeds, 290. 4. In Debt on Judgments, 290. 5. Penalties, 292. a. Penal Statutes, 292. b. Penal Bonds and Penal Bills, 292. 6. Averment of Consideration, 294. C. The Plea, 300. 1. Nil Debet, 300. a. In General, 300. b. Negotiable Paper, 300. c. Judgments, 301. d. Rent, 303. e. Matters Provable under Nil Debet, 303. 2. Non Est Factum, 304. 3. Nul Tiel Record, 307. 4. Payment, 308. 5. Conditions Performed, 310. 6. Special Pleas, 310. a. Specialties, 310. b. Foreign Judgments, 310. c. Want of Jurisdiction, 310. d. Want of Consideration, 310. e. Matters Amounting to General Issue, 310. 7. Bill of Particulars, 311. 8. Misjoinder of Issue, 312. D. The Replication and Rejoinder, 312. 1. Between Writ and Declaration, 314. C. Obligations with Penalties Annexed, 318. D. In Actions by and against Personal Representatives, 320, E. Money Judgments, 322. F. Installment Contracts, 322. G. Joint Actions, 322. H. Interest, 322. I. Amount of Recovery, 323. J. Writ of Inquiry, 323. VI. Bail, 324. CROSS REFERENCES. See the titles ACTIONS, vol. 1, p. 138; CONSOLIDATION OF ACTIONS, vol. 3, p. 125; INJUNCTIONS; LIMITATION OF ACTIONS; PROFERT AND OYER; SERVICE OF PROCESS; SET-OFF, RECOUPMENT AND COUNTERCLAIM; SHERIFFS AND CONSTABLES. As to equitable defenses, see the title ACTIONS, vol. 1, p. 138. As to the office judgment in debt, see the titles ABATEMENT, REVIVAL AND SURVIVAL, vol. 1, p. 2; JUDGMENTS AND DECREES. I. Definition and Distinctions. tended in its scope by the legislature, A. DEFINITION. and has finally evolved a statute which has largely taken the place of debt in of debt or assumpsit may be mainpractice. It provides that an action tained on any note or writing, whether sealed or not, by which there is a promise, undertaking or obligation to The action of debt is, in legal consideration, a remedy for the recovery of a debt eo nomine and in numero; namely, a specific sum of money due by contract, express or implied, and is most frequently brought on a deed. Virginia Fire, etc., Ins. Co. v. Saun-pay money, if the same be signed by ders, 84 Va. 210, S. E. 584; State v. Harmon, 15 W. Va. 115; Dungan v. Henderlite, 21 Gratt. 149. B. CONTRASTED WITH CASE. The difference between actions of debt and case rests in the different measure of damages applicable to these two forms of action; in case the measure of damages being uncertain and dependent upon the actual damages sustained, while in debt the amount is fixed. Stone v. Wilson, 10 Gratt. 539. See Byrd v. Cocke, 1 Wash. 232. C. CONTRASTED WITH ASSUMP SIT. the party who is to be charged thereby or his agent. But in light of the following remarks in a well-considered West Virginia case, it is advisable, as being more than safe and simple, under the present state of the law, to bring debt where it will lie, instead of assumpsit. State v. Harmon, 15 W. Va. 115. See Middle States Loan, etc., Construction Co. v. Engle, 45 W. Va. 588, 31 S. E. 921. The court expressed the opinion, that the change or amendment in the tenth section of chapter 144 of the Code of Virginia of 1860, providing that an action of debt or assumpsit may be maintained on any note or writing, whether See the title ASSUMPSIT, vol. 2, sealed or not, by which there is a p. 1. The West Virginia statute has to a great extent made the action of assumpsit concurrent with the action of debt. And assumpsit has more of the characteristics of an action of debt than any other form of action in our practice. Lynch v. Merchants' Nat. Bank, 22 W. Va. 554, 46 Am. Rep. 520. Debt lies in all cases of determinate contract, whether evidence, by specialty, or by simple contract, either verbal or written, and is distinguished from assumpsit in this, that the latter must be brought where the object is to recover damages for the nonperformance of a parol or simple contract, but where the sum due is ascertained, debt may be brought. Eib v. Pindall, 5 Leigh 110. Status of Debt in West Virginia.Because of the necessity for a broader, more liberal and comprehensive form of action than the old action of debt, the action of assumpsit has been ex promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby or his agent, was not intended to give the action of assumpsit upon any scaled instrument or writing, except one containing a promise, undertaking or obligation to pay money. Because "the pleadings in assumpsit and debt upon sealed instruments are so materially different at common law in many respects, as in force with us, that the tenth section of said chapter 99 must produce great confusion and difficulty in practice in the absence of express legislation changing the pleadings in assumpsit so as to conform to and harmonize with the extension of the remedy of assumpsit made by the section. For instance, the general issue in debt upon a writing obligatory is non est factum, and no such plea is known in the action of assumpsit. The plea of nonassumpsit is the general issue in assumpsit; and it puts in issue the con |